USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1886
FRANK X. LOSACCO,
Plaintiff, Appellant,
v.
F.D. RICH CONSTRUCTION CO., INC.,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Frank H. Freedman, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
_____________________
Paul F. Kelly, with
_______________

whom

Shelley B. Kroll,
_________________

and

Segal,
______

Roitman & Coleman, were on brief for appellant.

_________________
Lewis G. Schwartz, with whom Gary S. Klein, and Schatz &
_________________
_____________
_________
Schatz, Ribicoff & Kotkin, were on brief for appellee.
_________________________

____________________
May 10, 1993
____________________

TORRUELLA, Circuit Judge.

_____________
that

appellee

ended

determined

that

therefore

found

employment

appellant was
no

Appellant now claims

erroneous

his

that the

improperly.

terminated

violation

instruction as

At trial, appellant claimed

of

his

to "just

vacate the judgment

just cause

employment

district court gave

cause" and

admissible relevant evidence at trial.

court to

for

and order

The

jury

and

contract.

the jury

an

wrongly excluded

Appellant thus asks this

a retrial.

Because we

find no error in the district court's instructions or evidentiary

rulings, we do not grant appellant his requests.
THE FACTS

THE FACTS
_________

Appellant is a structural engineer with an expertise in

pre-cast concrete
matters

involving

construction.
pre-cast

Connecticut headquarters.
be more profitable
them from

He worked

concrete

at

as a consultant
appellee's

on

Stamford,

Appellee soon determined that it would

to make pre-cast

outside vendors.

products instead of

The company thus set

buying

up a factory

for this purpose in Pittsfield, Massachusetts and hired appellant

to manage it.
The
dispute.

details of

Appellant

the employment

contends

that

he

contract are
agreed

in sharp

to manage

the

Pittsfield facility for a minimum of three years, in exchange for

salary and benefits including housing in Pittsfield for the three

year
was

term.
an

Appellee, on the other hand, contends that appellant

at-will employee,

company.

In

any event,

as were

all

other employees

appellant began work

of the

in Pittsfield

in

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August, 1987.
In October 1987, the
the plant,

announced its

company's senior managers visited

immediate closure, and

terminated all

employees,
closed

including appellant.

the plant to

contends that it
downturn

in

thwart union activity.

decided to

the

Appellant claims that appellee

close the plant

Northeast

construction projects.

Appellee, however,

real

estate

Appellee

because the

market

also claimed

sharp

affected

its

that appellant's

performance was inadequate.

Appellant
contract
no

sued,

claiming that

to employ him for three years.

contract

termination

was

formed, but

was

Massachusetts

for "just

law.

cross-examine a

that

cause"

During

even
and

the trial,

appellee was

bound by

Appellee responded that

if

one existed,

therefore proper

the

under

appellant attempted

former supervisor about testimony

to

at a National

Labor Relations Board hearing to the effect that there was plenty
of work

at the plant.

plant's

closing.

The hearing occurred

The

questioning, finding

district court

it beyond the scope

judge

shortly before the

disallowed

this

of direct examination,

and more prejudicial than probative.

At the close of evidence, the district court instructed

the jury that if a contract existed, termination for "just cause"

would be proper.

The district court judge defined

"just cause"

as 1) poor performance by appellant on the job or 2) a good faith

determination that

the economic

appellant's discharge.

During

needs of the

business required

deliberations, the jury asked the

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judge to repeat its definition of "just cause."

found that
the

a contract for fixed-term

parties, but

appellant.

that

employment existed between

"just cause"

This appeal

followed

The jury finally

allowed

appellee to

in which

appellant

fire

seeks a

retrial on only the breach of contract claims.

DISCUSSION
DISCUSSION
__________
Appellant
First,

urges two

errors in

the

jury instruction.

he contends that the instruction does not reflect the law

in Massachusetts as to the definition of just cause.

claims that
the

jury,

the instruction
by

settling a

improperly invaded the

question

of

fact,

Second, he

province of

in violation

of

Massachusetts law.

As appellant claims that the jury instruction

incorrectly stated

Massachusetts contract

novo.
____

law, we review

Salve Regina College v. Russell, 111

_____________________
_______

(mandating

de novo
_______

review

of

district

it de
__

S. Ct. 1217 (1991)

court's

determinations).
The suspect instruction reads as follows:
An employer has just cause to discharge
an employee
if,
one, there
is
a
reasonable
basis
for
employer
dissatisfaction with an employee, for
reasons such as lack of capacity or
diligence, failure to conform to usual

state

law

standards of conduct, or other culpable

or inappropriate behavior.
Or two, the
discharge is reasonably related, in the
employer's
honest
judgment, to
the
economic needs of his business.
The district court derived
a duo of Massachusetts

this instruction almost verbatim from

cases, Goldhor v. Hampshire College, 521

_______
__________________

N.E.2d 1381, 1385 (Mass.

App. Ct. 1988), and Klein

_____

v. President
_________

-4-

and Fellows of Harvard College, 517 N.E.2d 167, 169

_______________________________
Ct. 1987).

Although those

definition, they
employee either
Because

the

cases stated the

focussed on the
did or

meet the performance

not invoke

definition, appellant argues that

not

entire just

first prong, holding

did not

holdings did

(Mass. App.

the

cause

that the

standard.

second prong

of the

the economic needs standard is

a part of Massachusetts law but rather dicta by intermediate

state courts.
We
issued
federal

As such, it cannot support a jury instruction.

disagree.

a definitive
courts

dicta, scholarly

may

When the

highest state

court has

ruling on

the precise

refer

analogous decisions,

works, or

to

issue at

other reliable sources

not

hand, the

considered

to ascertain

how

the highest court would

rule.

Orchestra, Inc., 855

_______________

F.2d 888,

cert. denied,
_____________

U.S.

intermediate

488

ascertaining state

law.

v. Boston Symphony
_______________

903 (1st Cir.

1043

state appellate

Redgrave
________

(1989).

courts

are

1988) (en
The

banc),

decisions

trustworthy data

CPC International, Inc.

_______________________

of

for

v. Northbrook
__________

Excess & Surplus Insurance Co., 962 F.2d 77, 91 (1st Cir. 1992).
______________________________
The

Massachusetts

answered the precise

Supreme

issue at

Judicial

hand -- whether

terminate a fixed-term employee

Court

has

not

an employer

may

due to economic

considerations.

The plaintiffs in Goldhor and Klein were fixed-term employees and

_______
_____
therefore

similarly

considered dicta

situated

in those

to

appellant.

such,

cases concerning terminations

economic necessity represents a reliable statement

Massachusetts.

As

the

due to

of the law in

The district court did not err in relying on it.

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There is no

indication that the

highest court of

would define just cause any differently.

Massachusetts

To the contrary, we note that Massachusetts courts have

defined just cause, or similar language, in a virtually identical

manner

in

other

definition

contexts.

and

Klein
_____

derived

the

of just cause from G & M Employment Service, Inc. v.

_______________________________

Commonwealth, 265 N.E.2d

____________
highest

court

purposes

of a

in

476 (Mass.

Massachusetts

the definition

include Amoco Oil Co. v.

______________

just

that case,

the

cause

the

for

private employment

and Klein.
_____

terminations

agencies.

precursor to

Other Massachusetts
due to

Dickson, 389 N.E.2d

_______

(franchise agreement) and Karcz

_____
N.E.2d 441

In

that case was the direct

used in Goldhor
_______

validating premature

1970).

defined

statute regulating

The court's definition in

cases

Goldhor
_______

economic

need

406 (Mass.

1979)

v. Luther Manufacturing Co., 155

________________________

(Mass. 1959) (collective bargaining

agreement).

See
___

also Foreign Motors, Inc. v. Audi of America, Inc., 755 F. Supp.

____ ____________________
______________________
30 (D. Mass. 1991) (franchise agreement).
us

to, and

we have found,

Appellant has directed

no cases involving

prohibit economically-motivated terminations.

of authority,

we believe that

just cause which

Given the

the jury instruction,

weight

taken from

Goldhor and Klein, correctly set forth Massachusetts law.

_______
_____
Appellant's second attack

on that instruction

claimed

that the instruction improperly invaded the province of the jury.

Consistent

with

the

law

on

economically-based

discharges,

however, the jury

could decide whether

business judgment to

appellee made an

close the plant.

Appellant

honest

cannot contend

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that the

parties contemplated

just

meaning in this context because

the

existence

properly

of such

relied on

the

cause to

have a

different

there was no evidence indicating

an alternate

meaning.

The

implied Massachusetts

court thus

definition.

decline appellant's invitation to remand the case

We

for retrial or

to certify the state law question due to the jury instruction.

We

turn now

to appellant's

arguments

concerning the

exclusion of certain evidence.

Appellant sought to cross-examine

a witness

was plenty of

to show

that there

shortly before its closing.

appellee

would relate

effect.

To elicit this

matter of some concern

organize,

wasn't

it?"

work at

Appellant hoped that an

testimony from

an NLRB

Appellee

officer of

hearing to

testimony, appellant asked

to you that the

the plant

this

"[i]t was a

employees were going

promptly

objected

to

to

the

relevance of the question, and the judge held a bench conference.

Appellant there indicated that he wished

to elicit the testimony

concerning the amount of work at the plant.

The

district

court

excluded the testimony because the

direct

as

to the

supervisor did not testify on

motivation behind

the

plant closing

or the

economic woes troubling the company.

We review a district

court's evidentiary rulings

only

for abuse of discretion, e.g., Willhauck v. Halpin, 953 F.2d 689,

____ _________
______
717 (1st Cir.

1991), and the district court

abuse in this instance.

establish

that

reasons.

The

The new line

the plant

was

of questioning sought

not closed

witness, however,

did not commit such

did

for

not

to

honest business

testify

as to

the

examination.

The

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motivation for

the company's action on direct

district court

therefore properly

refused to entertain

the new

line of questioning pursuant to Fed. R. Evid. 611(b).

Of

course, trial judges,

disregard Rule
however, that
constitutes
reasonably
that it
Even

if

611(b).

Fed.

R. Evid.

the district court's

an

abuse

of

believed that

would ascribe an
appellant sought

within their discretion, may

611(b).

We

decision to follow

discretion.
the question

The

that

the rule

district

court

threatened prejudice

unfair anti-union animus

to show

cannot say,

the plant

in

to appellee.

closing was

motivated
minimal

by

explanation

Appellant
pursuing

such animus,

should have
the

or

this

single

question supported

proffer

cannot

overcome

presented a

questioning, or

more coherent

revived

the

by

Rule 611(b).

rationale for

questioning when

witness testified as to such motivation.

Because we have found no cause to remand the case for a

new

trial,

limited

we need

not address

whether

that trial

should be

to the breach of contract issues or should encompass all

issues in the case.

Affirmed.
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